Seven states have filed suit against the U.S. Environmental Protections Agency, seeking tougher restrictions on wood-burning heaters. Six of the states are in the Northeast, and the other is Oregon.

In their lawsuit, Connecticut, Maryland, Massachusetts, New York, Oregon, Rhode Island, and Vermont state officials claim wood-fired boilers produce too much pollution, threatening human health. The states seek a federal court order to require EPA to enact stricter restrictions on the boilers, which have been banned in some states and are strictly regulated in others.

State-Specific Remedies AvailableDaniel Simmons, director of state affairs for the Institute for Energy Research, says the lawsuit is strange because there is nothing stopping these states from changing their laws to require more clean-burning woodstove use in their states.

“The most important federal role on air pollution is cross-states air pollution, but in this case the states are complaining about air quality in their own states. Oregon is complaining about air quality in rural Oregon and the Portland area, according to the Oregon Attorney General. Likewise the New York Attorney General stated he was concerned about air quality in New York's rural communities. That should be the purview of the state government, not the federal government,” said Simmons.

“The real reason for this lawsuit may be that these states want to regulate people and wood-burning devices in other states. States like New York have new regulations on wood-burning devices. But these regulations would make the New York stoves more expensive than those sold in other states. It may be that New York and other states want to level the playing field by making all states comply with New York's regulations,” he explained.

Sue-and-Settle Agenda“It appears this is an example of a friendly ‘sue and settle’ lawsuit,” said Simmons. “EPA is in violation of the law because they have not reexamined their standards within the statutorily provided time. That means this lawsuit will likely be settled out of court.”

“This is important because it means the environmental litigants, instead of Congress, are setting the policy for EPA by deciding which issues EPA must address,” Simmons observed.

Raising Costs in Rural AmericaSeton Motley, president of the public policy organization Less Government, noted the benefits of wood-burning heaters in rural regions.

“I’m sure that for some of these folks who will be affected, it’s a matter of survival for them to be able to burn wood in the winter,” he said.

“If these people are so isolated, why does anyone else really care? After all, it’s not like they are on Wisconsin and M Street in the middle of Georgetown firing up wood-burning stoves,” he explained.

Collusion to Circumvent Proper ProcedureJohn Dale Dunn, M.D., J.D., a policy advisor for The Heartland Institute and the American Council on Science and Health, said the lawsuit is standard practice for a federal regulatory agency like EPA.

“One party sues another, but they both want the same result, so it ends up in a collusive lawsuit that is more akin to professional wrestling than an actual case. Everyone knows the outcome in advance, and both parties act out their roles so the verdict can be used to tighten up regulations,” Dunn explained.

“I call this the Br’er Rabbit gambit,” said Dunn. “What’s going on here is the EPA says: Please don’t sue me; then the seven states sue and the EPA is forced to act.”

Dunn emphasized EPA realizes it can impose stricter restrictions through sue-and-settle actions than by attempting to impose stricter regulations through formal administrative action. The latter requires formal scientific findings, the opportunity for public comment, and potential legal challenges over the procedures and cited science. Sue-and-settle agreements allow for more far-reaching EPA restrictions without all the fuss and muss.

H. Sterling Burnett, a senior fellow with the National Center for Policy Analysis, said there is no need for this case.

“I just don’t see it,” said Burnett. “Unless they can show it’s being caused by cross-state pollution, these states need to deal with the issue locally without the help of the federal government.”